As I have pointed out in the last two posts, the NYT has a story up claiming that Jim Comey approved of torture, but that grossly misreads the Comey emails on which the story is based. In fact, the memos appear to show that the White House–especially Dick Cheney and David Addington–were pushing DOJ to approve the torture that had been done to Hassan Ghul, without the specificity to record what they had done to him; in fact, one of the things the push on the memos appears to have prevented, was for Comey and Philbin to have actually researched what happened to Ghul.

But the NYT instead claims that Jim Comey approved of torture legally, even while downplaying his concerns about the "combined techniques" memo that was the focus of his concerns (and not mentioning his response to the third memo).

But there is more news than that in the Comey emails–news the Grey Lady doesn’t seem to think is news. This includes:

Pressure on Pat Philbin

On April 27, 2005, Jim Comey alerted Chuck Rosenberg, his then Chief of Staff, on the fight over the torture emails because he was about to go on a trip, and he figured Pat Philbin would need cover from political pressure. He described that Philbin’s concerns about the memo were ignored. He closed the email by saying that Gonzales had visited the White House and–in spite of Comey’s request for a delay–told Philbin and Bradbury to finish the memo by Friday, April 29. Philbin objected that that was not enough time to do the "fact gathering" needed to fix the memo. Comey was basically asking Rosenberg to prepare to intercede on this process.

The following day, Comey emailed again to say that Ted Ullyot (who had just been read-in to this program) was pushing to get the memo done. It also appears that Ullyot was claiming Comey’s objections had to do with the prototypical interrogation included in the memo, and not the lack of specificity.

Alberto Gonzales’ Cowardice

Comey describes Dick Cheney putting a great deal of pressure on Alberto Gonzales to push through the memos in the last weeks of April.

The AG explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP’s request and the AG had promised they would be ready early this week. He added that the VP kept telling him "we are getting killed on the Hill."

I have laid out the roots of the Bradbury memos in presure from–at a minimum–Jello Jay. I guess when Republicans say Democrats weren’t really objecting, they’re full of shit, huh?

He then describes talking Gonzales into holding up the "combined effects" memo. (Recall that accounts of Gonzales’ relationship with Addington refer to just a few disagreements with him–I expect this counts as one of them). Gonzales, on April 26, apparently told Comey to make the "combined effects" memo right.

Comey describes a conversation with Ted Ullyot, Gonzales’ Chief of Staff, in which Ullyot made sure Comey felt like he had been heard before they rushed through the OLC memo. Philbin suggested going back to Gonzales to figure out why Gonzales had caved to White House pressure on this. Comey said,

I told him I didn’t see a need, given that I had just said things to his chief of staff that would have lit the prior AG’s COS’s hair on fire.

Comey describes hoping that Bradbury and Gonzales or Ullyot take the blame for this in the future:

It leaves me feeling sad for the Department and the AG.

[snip]

I just hope that when this all comes out, this institution doesn’t take the hit, but rather the hit is taken by those individuals who occupied positions at OLC and OAG and were too weak to stand up for the principles that undergird the rest of this great institution.

[snip]

People may think it strange to hear me say I miss John Ashcroft, but as intimidated as he could be by the WH, when it came to crunch-time, he stood up, even from an intensive care hospital bed. That backbone is gone.

Steven Bradbury’s Ambition

Comey expresses concern that Steven Bradbury was caving to Cheney because he wanted to take over the OLC job.

I have previously expressed my worry that having Steve as "Acting" — and wanting the job — would make him susceptible to just this kind of pressure.)

According to Comey’s version of Philbin’s reporting, Bradbury was "relieved" when they held up the "combined effects" memo.

Comey describes the reluctance to focus this opinion on one person to be coming from OLC–probably Bradbury.

[Ullyot] mentioned that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

This suggests (though doesn’t prove) that Cheney and Addington were pressuring Bradbury to avoid putting the facts pertaining to (presumably) Ghul in writing, and Bradbury was using stupid excuses to avoid doing so.

Comey’s Bureaucratic Wrangling

You can tell Comey never gave up his suspicions after the Hospital fight. Some of the bureaucratic CYAs he undertakes are:

Making comments on the OLC memos themselves, but then making–and keeping–a second copy of those notes himself.

Suggesting that DOJ blame him: "I suggested to [Ullyot] that he explain to the White House that ‘that [fucking?] DAG’ (my words) had gone on record against this, which would jam them in the future, so we needed to wait.

Raising the videotape of the torture.

Curiously, Comey also records feeling like he had no options to force the issue here, "given that I have already submitted my resignation."

White House Willful Blindness

Comey, several times, correctly predicted that those involved in authorizing torture would one day claim to be blind to the real implications of these memos. He said,

I told him the people who were applying pressure now would not be there when the shit hit the fan. Rather they woudl simply say they had only asked for an opinion.

(There are direct quotes from Addington and Yoo from last year’s Assholes Who Torture hearing saying just that, and Condi quotes doing the same.)

He describes prepping Gonzales for a "Principles" [his word choice] meeting on May 31, 2005 (the day after Bradbury’s third memo was released), trying to force Condi to face up to what she was approving.

The AG began by saying that Dr. Rice was not interested in discussing details and that her attitude was that if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for detailed policy discussion. Pat and I urged the AG in the strongest possible terms to drive a full policy discussion of all techniques.

[snip]

I explained that even he and Bradbury believed that the legal question was extremely close; given that, and the details of what we are talking about, there needed to be a detailed factual discussion, followed by a full policy discussion. It would land on the President eventually adn [sic] it simply could not be that the Principles would be willfully blind.

He sent Gonzales off with a list of the torture techniques to describe to Condi et al, but then came back and said everyone approved the torture.

He said the issues were fully presented and he had drawn my "worst-case scenario" for them. At the end, he said, all Principles approved the full list. He gave me no details. I relayed this to Pat Philbin just a few minutes ago. Both of us were quite surprised at that report, but agreed that we did not know exactly what had been presented and discussed, which is a vice–and, to some, a virtue–of the "Principles Only" meeting.

Comey, clearly, was hoping for an opportunity to force Bush (above all, seemingly) to understand that this torture would all reflect back on him one day. But "some" of those involved made sure that Comey never got that chance.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

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https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2009-06-06 13:02:422009-06-06 13:02:42All the News NYT Does Not See Fit to Print

This makes for a story that Comey did support the first Bradbury memo (his email confirms) and that he was willing to support the second one if they limited it to the interrogation of the particular guy whose abuse was worrying the VP’s office as coming back to bite them. He was Obamalike in his willingness to provide grace for everyone already involved and given the PR build on Comey for the last few years, it bolsters the case for CIA that even a MarthaStewartSlayer like Comey would buy off on what they did in all the specific instances of doing it, he just wanted to limite future use – what with digital cameras and all.

This also helps them squeeze Gonzales a bit, after his little episode where he tried to absolve himself from torture by saying that he was just WH counsel when “the memos” came out. Bradbury is a real likely too – and the easey peasey from OPR on Bradbury may be bc of Comey’s implicit approvals of Bradbury’s May 10 memos, albeit with wanting to limit the second one. That tag teams back to Bradbury’s little mea culpa memo this Jan – I can’t remember how he phrased it but he was basically trying to excuse himself for broad-based efforts at exculpation of torture as policy vs review of specific instances.

No call on the Bird bmaz. I’m at the office now on my way to errands and other than the goosebumpy filly whose not running, I usually won’t call anything until I see them on the day. The filly was just real real special though.

included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

Late to the party: I can’t find the Marcy Wheeler: NYT Is Distorting The Record item on Huffpo, even if I use their search.

This is a minor gripe I have with FDL. Your post was dated yesterday, but when it hits the FDL front page a day later, most of the comments are from the day before. So I don’t seem to be able to find the Huffpo articles because their headline items are long gone a day later. And for some reason when I find the article in their search, clicking on the link goes to their front page. This isn’t your fault, of course.

Minor annoyance, but a lot of us can’t read ALL of the blogs at FDL every day, and it’s easy to overlook the dateline on a post from the day before when it is front-paged a day or so later.

Hey msmolly — if I can make a recommendation here, it might save you both time and ensure you don’t miss anything from any of your favorite FDL sites…

I suggest setting up Google Reader if you’re a Gmail user, or another reader like Bloglines if you use a different email service, and then adding the “feed” from each of your desired blogs into that reader. It makes scanning for new content very fast, can choose to skip posts you don’t want to read, or collect only emptywheel’s content versus Oxdown content, for example.

To find the RSS/XML feed, see the little orange button at the very bottom of this page. Right-click on it and copy link, then paste into your reader of choice.

My last gig required me to audit all state newspapers and dozens of blogs each day, saved me tons of time to use a reader, and I never had to worry about missing any posts.

Short-term I’ll hazard a guess there’s going to be a blizzard of posts once the OPR report is published — which means NOW is an optimum time for busy regular visitors to get readers set up to stay abreast of developments.

For those of you with mobile devices, you might try a service called “Feed My Inbox“, which will send you each post as they are added to the site. There’s a little lag time between each post’s publication and the email you’ll receive — my estimate is about one hour or less — but for folks who are traveling and don’t have access to a computer, this may be just perfect. I use it on an email-only device on which I can receive messages too long for cellphone text and away from other wireless service. Give it a whirl and see what you think; the only downside is that you won’t get comments nor active links as it’s text-only service. But you will be up to date with EW’s posts!

a shining example of the amazing way ew is shaping the narrative for the forces of good: the current top story on Huffpo – below the Air France headlines – center column is about the NYT story. It has two headlines:

yeah .. rice “didn’t want to know” .. and the rest of the chickenshit chickenhawks took the dodge just as comey predicted .. he knew he was dealing with true chickenshits eh .. they’re always predictable .. big tough guys till the shit hits the fan ..

addington is a true asshat who needs to be sized for a noose .. oh don’t get me wrong.. i want to see the arrogant bastard tried in a formal setting and convicted first .. but really .. imo .. hangin’ is too good for the asshat ..

First, on Addington… I am in total agreement. I can not describe the anger that consumes me when I see his fingerprints on these crimes.

On Comey’s references to how the WH would walk away from any guilt and point the fingers at the OLC, he already had the knowledge that Abu Ghraib was a prime example. Only a few grunt soldiers other than Karpinsky were held to account. Comey knew that Abu Ghraib was a result of these earlier OLC decisions forced by the WH because he obviously had seen the tapes of some of the CIA torture and saw that they were the same.

EW, I read the NYT’s article first and as I was reading it, I wanted to quickly escape this bullshit and go to your take on it. I didn’t have to look far since it was right below on Huff Post as others have noted. Excellent work as always.

EW, I read the NYT’s article first and as I was reading it, I wanted to quickly escape this bullshit and go to your take on it. I didn’t have to look far since it was right below on Huff Post as others have noted. Excellent work as always

I sure hope the link produces some more donations to the “Marcy Fund.”

“…I got the most recent draft of the second opinion and read it. My concerns were not allayed, only heightened. Patrick felt just as strongly that this was wrong. I made some notes on the document and separately on small yellow note paper and booked time to see the AG alone at 5:15 PM

That document with Comey’s notes on it sounds like a smoking gun to me. Has it been destroyed? That email reads like a laying out of the evidence of the crime(s).

(This paragraph appears after the VP pressure paragraph with the “killed on the Hill” comment.)

Comey would be smart enough to have kept a copy of his notes on the document. It may even be evidence used for the OPR report. The email is Comey’s way of documenting his actions and evidence. His breadcrumbs to investigators. Gonzo cannot forget THIS!

Exactly!
Jane Mayer mentions in The Dark Side that Comey and Philbin (I think, maybe someone else) actually came up with a code language while they were on the phone with each other as they believed they were being listened to by NSA…which is exactly what the hospital-bed drama was all about…so, yes, he has the goods and Gonzalez knows it.

Rice didn’t want to know. Gonzales didn’t want to know. Cheney and Addington didn’t want it written down. Bush hasn’t a clue and everyone but those demanding a “principles” meeting of principal participants likes it that way too. Evidence of guilty knowledge anyone?

Marcy, I’m pretty fascinated by the “we’re getting killed on the hill” bit. Just a few points that occur.
– Cheney obviously had (has) nothing be contempt for congressional oversight.
– CIA briefers were doing the congressional briefings, yes? And we know that they were providing purposefly obfuscatory information. Is this 2005 timeframe when Dick first started doing the briefings on his own?
– Is it more likely that OVP deliberately created a smokescreen of congressional disaproval in order create a pretext for the memos? Not to say there wasn’t disaproval – obviously there was. We know for a fact that Cheney could give a rats ass about what Pelosi and Rockefeller thought. Maybe he and Addington figured their best chance of getting the memos they wanted when they wanted was to rush them by the one person who was likely to object by creating an atmosphere of “hey, we’re doing it this way at the behest of the democrats… so, come on, play ball.”

Yup, this is when Cheney started doing the “briefings.” And it’s when Jello Jay was pushing for an investigation and to see some of the materials from the CIA IG report. SO the pressure was real. I also wonder whether it was in conjunction with the IG’s investigation of extraordinary rendition.

Yup, this is when Cheney started doing the “briefings.” And it’s when Jello Jay was pushing for an investigation and to see some of the materials from the CIA IG report. SO the pressure was real. I also wonder whether it was in conjunction with the IG’s investigation of extraordinary rendition.

In response to both you and pinson, I would note that it is important to remember that both houses of Congress were still controlled by the Repugs at the time that Fredo said this to Comey:

He added that the VP kept telling him “we are getting killed on the Hill.”

Yes, Jello Jay was whining, and maybe a few Democratic souls in the House too, but the bottom line is that the Repugs still had control. Control over all the committees! Control over all the legislation! Control over all the majority votes!

And an additional thought:

Fredo may not have been telling the truth here (what, you’re surprised? *g*). Fredo, may himself, have “invented” the “we are getting killed on the Hill.” statement since he was himself getting killed on the Hill.

Well, remember that SSCI operates differently than other committees–it is designed to have less partisanship. So Jello Jay had a bigger say than, say, Levin had on SASC at the time (though “getting killed on the Hill” may also refer to McCain).

have had thoughts in the last few head shaking years that the powers that be at WaPo/NYT must be engaged in some ’sell short’ type scheme wherein someone is making money by driving both institutions reputations and integrity in to the ground

Is it some kind of “Don’t shake the cage — you might wake up the inmates, and then we might get the sixties all over again.” Which, perhaps they believe, would be so distressing that the nation could never survive the experience.

The NYT runs articles — one I remember taking 3 pages! — on what you can do to live “green”, and they don’t even dare to go beyond turning out the lights when you leave a room. Anything else, they say, is “bothersome” (my word, not theirs, in case someone’s checking), not worth it, and not economically to your advantage. It’s always what’s to the reader’s economic advantage. Don’t sell a clunker of a car, because after all, it’s paid for and what you’d get in better MPG in a new, smaller car wouldn’t pay for the change. On and on. The “Science Times” used to be really worth reading; now it’s physicians’ experiences with their patients. (And I’ve never figured out what the point of that “Tierney Lab” thing is.)

I subscribed for over 20 years, then religiously sought out daily copies, but they just took a jump out of my price range and don’t have much of anything that attracts me any more. “Jersey Housewives living large!!” taking up a whole page — not on my dime. Or $2.

Considering the degree of concern Comey displays here about combined effects of the approved techniques, it becomes more important than ever to know what fact representations Rizzo made in his memos to DOJ.

Of particular interest would be the Background Paper on CIA’s Combined Use of Interrogation Techniques [undated, but transmitted Dec 30 2004]. This was mentioned in the second Bradbury memo of Mar 10, 2005, with the curious stipulation that it “did not include any discussion of the waterboard”.

Much has been made here about the fact that the OLC covering memos live or die upon the representations made by Rizzo throughout this whole process.

Rizzo seems to have insisted in writing that everything was hunky-dory with the interrogations, but someone appears to have put a bug in Comey’s ear regarding the combined techniques.

It would be useful if OPR is comparing the DOJ copies of Rizzo’s memos with any after action reports of how things really went.

Any internal DOJ communications about info they may have received about bad outcomes in practice may be a big reason why the OPR report has been so long in coming.

From Wikipedia: Role in authorizing enhanced interrogation techniques
A Senate Intelligence Committee reported that on July 17, 2002, Rice met with CIA director George Tenet to personally convey the Bush administration’s approval of the proposed waterboarding of alleged Al Qaeda leader Abu Zubaydah. “Days after Dr Rice gave Mr Tenet her approval, the Justice Department approved the use of waterboarding in a top secret August 1 memo.”

In 2003 Rice, Vice President Dick Cheney and Attorney General John Ashcroft met with the CIA again and were briefed on the use of waterboarding and other methods including week-long sleep deprivation, forced nudity and the use of stress positions. The Senate report says that the Bush administration officials “reaffirmed that the CIA program was lawful and reflected administration policy”.[48]
The Senate report also “suggests Miss Rice played a more significant role than she acknowledged in written testimony to the Senate Armed Services Committee submitted in the autumn.”[48] At that time, she had acknowledged attending meetings to discuss the CIA interrogations, but she claimed that she could not recall the details, and she “omitted her direct role in approving the programme in her written statement to the committee.”[70]

Curiously, Comey also records feeling like he had no options to force the issue here, “given that I have already submitted my resignation.”

funny, another man might think that to instead be a liberating fact allowing all kinds of noise to be made. Of course that would have to be a man not focused on himself moving forward as a high priced defense contractor whore.

Absolutely brilliant analysis! This NYT article rivals the pre-war drivel of Judith Miller and friends. This coming OPR Report must be seen as the Eye of the Storm for the torture showdown. If Comey performs in the Torture Hearings like he did in the US Attorney Hearings, big Dick and Tonto/Addington are in real trouble. He was simply the most powerful figure in a Congressional Hearing since Alexander Butterfield on Nixon and Joseph Welch on McCarthy. Let the games begin…

Incidentally, the reference–on May 31–to “my concerns about the legal opinion”–must refer to the May 30 one (given the singular reference and the timing). Of course, the NYT’s source leaves all discussion of that one out, as well.

One more time, the Grey Lady has been gamed… sad day because it used to be the absolute source on its stories. If, in fact, our friend the Big Dick has used the NYT reporter, then he must be VERY afraid. First, Comey still appears to be quite the straight arrow — and I doubt seriously that he will allow anyone to put words in his mouth, particularly someone like Cheney. Second, all Comey has to do is open his mouth about what he believed and I think the reporter will find himself undermined by the truth.

Finally, the results of that OLC report must be known by a select few if Cheney is playing this hard. Something tells me that Cheney is going to find himself on the outside looking in, with some criminal charges lingering…

On topic (Comey’s emails), but off topic (warrantless wiretapping), I note for the record this part of Comey’s 2nd email:

…Once again, Patrick Philbin has been the voice of intellectual rigor and honesty, and principle. The world will never know what a hero that young man is. With Jack Goldsmith, he managed to rescue the president and the executive branch from disaster on that other classified program. He has tried to do the same on interrogation, but he (and I) have not carried the day…

(My Bold)

That “other classified program” surely has to be “warrantlessly wiretapping”; otherwise known as the “Terrorist Surveillance Program (TSP)”.

I’m guessing that means the TSP was even worse than we’ve imagined, and we’ve imagined it to be pretty fookin’ bad!

I’m pretty sure it’s not worse than I imagine it to be. I have a very vivid imagination when it comes to government wrongdoing. Probably because my political memories begin with the assassination of Bobby Kennedy, Watergate, and the Church/Pike committees.

Refresh my recollection again, please, about why this repeated, intense pressure from the OVP was relevant. Why does this constitutional nullity have a vote? The VP has no power other than to break tie votes in the Senate and to stand in for a legally incapacitated chief executive.

Assuming, all evidence to the contrary, that Shrub was not incapacitated – incapable or incompetent are not adequate failings – Mr. Cheney had no constitutional say in any of this. His voice, if any, could only be to advise the president. Any putative authorization or command was the president’s.

As if we needed it, this memo string is further evidence, pre-Libby trial, that Fredo was an empty suit, in thrall to Addington and his boss, and so was George W. Bush.

When it came to Bush, “Cheney had the first and last bite of the apple”

Cheney was calling the shots, as we all know, with a bumbling idiot as his cover. No surprise there.

But what’s fascinating is that almost 8 years ago, one month after 9/11, Cheney retreated to his famed “undisclosed location” but Bush was out and about.

Now, that Cheney claims Obama has made the country “less safe” you can’t turn on the tube without seeing Darth or BabyDick. Apparently, Dick feels “safer” under Obama when he no longer has power than when Bush was running things….hmmm…..

Good job on reporting the obvious spin by NYT, to defang the OLC conclusions, making it look that “reasonable” fellows like Comey, Levin, et al. were signing off on the torture. Problem was, they were, in part, or at least parsing torture (okay to do stress positions, but not combine with sleep deprivation, for instance?).

I call this the Sopranos-ization of America. We find the more lovable gangster, and identify with them against the sadistic brutal gangster. Hence we can forgive the lovable gangster their crimes.

Comey is no hero, and his weaknesses on the torture approval vis-a-vis the first May 10 memo, makes him fodder for their later spin.

And then, there’s poor Patrick Philbin. Isn’t this the same Patrick Philbin who, per History Commons timeline:

Patrick F. Philbin, a deputy in the OLC, sends a confidential 35-page memo to the White House legal counsel Gonzales, arguing that the president, as Commander-in-Chief, has “inherent authority” to establish military commissions without authorization from the US Congress. The 9/11 attacks are themselves “plainly sufficient” to justify the application of the laws of war. Furthermore, putting terrorists on trial under the laws of war, “does not mean,” according to Philbin, “that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants.” The Philbin memo will serve as a basis for a Presidential order (see November 13, 2001) establishing the option of military commissions, which will be drafted by Deputy White House Counsel Timothy E. Flanigan and David S. Addington, the legal counsel to Vice President Cheney. [New York Times, 10/24/2004]

Gang of thieves. Comey may have been more honest than most, but still…. Will Bob Dylan one day write a song called “Jimmy”: “Jimmy, Jimmy, why did they have to go and screw you away?”

The funny thing about that memo is that a part of the basis for his conclusion that the President could establish military commissions is his parallel conclusion that the Geneva Conventions apply to even the US efforts to go after al-Qaeda. So he said commissions were ok by saying that the GCs applied and they allow for military commissions.

Then when OLC and Gonzales decide that they aren’t going to apply the GCs – no one seems to then go back and question the issue of commissions, which were based on the application of the GCs.

Wow. The same thing happened here as what happened with the Pelosi story. I read the “Pelosi knew all about it” with dread, not wanting to hate Pelosi, came here and felt better. Same with Comey today (Mary’s warnings in check).

The AG explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP’s request and the AG had promised they would be ready early this week. He added that the VP kept telling him “we are getting killed on the Hill.”

I have laid out the roots of the Bradbury memos in presure from–at a minimum–Jello Jay. I guess when Republicans say Democrats weren’t really objecting, they’re full of shit, huh?

To be fair to someone I don’t really want to be all that fair to, I think the pressure the VPs office and President were feeling wasn’t coming nearly as much from Democrats as it was from McCain. This timing (albeit from a slanted article) is suggestive:

In the spring of 2005, McCain began the process of formulating legislation to prevent a use of such extreme techniques and some of the sanctioned abuses at Abu Ghraib. Initially, McCain’s staff proposed and circulated a bill remarkably similar to the Democratic language McCain now opposes. In a draft proposal, dated May 17, 2005, and obtained by TIME, McCain’s staff specifically outlined a plan to make the Army Field Manual “the basis for a uniform standard adhered to by all elements of the United States Government.” Another section said that no person under U.S. control could be treated or interrogated with techniques “not authorized by or listed in” the manual. But in the end, after consultation with fellow Senators and others, McCain and his staff did not adopt this draft language.

In the end he caved too and instead we got the DTA, the MCA, and the Obama/McCain position that the CIA shouldn’t be held to the field manual.

But for that too brief, not quite shining moment that wasn’t exactly Camelot, McCain was making them sweat bc Abu Ghraib was fresh and McCain had the gravitas to get something rammed through. If they knew in April he was already working on something it made it that much more “necessary” to get the OLC/DOJ cover up for their homeboy torturers and torture conspirators out fast. As it is, the Bradbury memos barely “beat out” the McCain draft.

Hard to understand why anybody would have feared John McCain. His complete history, dating back prior to his time with the VC, is that he can be bought and/or diverted from anything, anytime, by the specter of something that might benefit John McCain just ever so slightly more. All he cares about, all he has ever cared about, is the future and well being of John McCain. It is the only dominant theme of his life. Nobody ever had to kowtow to McCain, they just had to figure out a way to divert him, and anything that he saw as a benefit to himself would have done the trick. I cannot believe the Mayberry Machiavellis didn’t know this; in fact, I think they did. That is why I don’t buy McCain as being what they were worried about. I dunno, maybe, but McCain is just so cretinously self serving that you have to wonder.

They half-believed the big talk from McCain, and that was enough to be useful to Cheney. As with the “briefings”, he used it as a bat to wield against people with reservations, however slight. People like Comey, who threatened to commit additional factual details of already-committed torture to paper, and to limit the authority to keep torturing.

Who was Ashcroft’s Chief of Staff that Comey wrote about so nostalgically after dealing with Gonzales’?

Not to be my typical, beat the dead horse self, but to be clear on all this

1. Comey did concur in the first Bradbury memo. Concur – good to go with it. Go read that memo again and then think through what kind of a man concurs in that. He was very much good to go with covering for the existing torture and torture crew, including the waterboarding in that memo.

2. Comey’s objection on the second Bradbury memo was that it was framed as a reliance memo for FUTURE use, and while he was good to go with it, he wanted it limited to the case of mulitiple co-existing tortures that he knew about (and knew that the multiple torture techniques sessions had prior oral approval). If they would have let him re-write it to be in line with the “specific person/fact pattern” format of the first Bradbury memo, he’d have been ok with that and volunteered to do that.

I get the same feeling as I did from the surveillance program issue. There, IMO, he was mostly concerned with the FISCt getting ready to go after the lawyers – including Ashcroft – and Mueller and he was worried about being put in a position (and having Ashcroft put in that position) of directly defying court orders and daring them to go to contempt (and he knew from his gal pal Townsend how tought they could be) He was ok with the massive felony program as long as the FISCt wasn’t going to go after the lawyers – once it looked like they might, the main thing (IMO) he wanted to fix was the firewall procedures so that the program could go on, but the lawyers wouldn’t be as at risk for direct violation of court firewall orders.

Here IMO he was wanting to stop the liability roll. He was taking an Obama-esque, “what’s done is done, let’s cover for everyone and keep them from ever having to pay consequences for disappearing children and freezing people to death before tossing them in an unmarked grave – BUT, let’s make them very specific memos that can’t be used to insulate future acts. So no future acts boomerang back to OUR liabiliy, just the old stuff that is Bybee-Yoo’s liability getting protection.

In any event, let me add to the 1 and 2 above a 3 – He never corrected the record to the Sup Ct on Clement’s statements, despite what he knew about – including waterboarding; and a 4 – He went on to sell a whole boatload of half truths in a smiley face presser on Padilla – deliberately trying to influence the Court to uphold the US detention on US soil of a US citizen, even while he had access to the Pentagon report of the Geneva Conventions violations at the Brig; and then there’s the 6 – he knew about at least one video that he mentions to AGAG as being problematic for CIA (no wonder it got destroyed a few months later) and yet he never sent out any preservation orders on torture in general or that video in specific and he never seemed to follow up on what torture evidence was being produced to the many courts involved in cases where the torture was pertinent and even subject to actual discovery orders; and then there’s a 7 – despite his knowledge of DOJ approvals and authorizations of forced nudity, stress positions, degradation/humiliation etc. he let his boypal Haynes sell the “few bad apples” storyline to scapegoat the soldiers and insulate Rumsfeld, Cheney et al and then topped it off with putting together a support cabal, including Philbin, Goldsmith and Thomspon (who truly creeps me out for what he did to Arar), to try to get Haynes in a Circuit Court seat after letting him scapegoat those soldiers AND cover up the rapes and sodomy.

I could, but won’t, go on. But I will say that someone like Zelikow gets shredded for a lot less IMO.

I think Comey’s torture concurrence on the first Bradbury memo would be pretty interesting to the Burge defense counsel – after all, all that stemmed from interrogations in a pressure cooker situation too.

And you have no idea of the context on it. You have twelve words among hundreds of others opposing a different memo. I agree that it’s most likely that he’s trying to play an Obama game of isolating the past but trying to prevent this in the future, but to make that argument or any other, you need more context than you’ve got.

You know he opposed the release of the second memo (for more reasons than you let on–in fact for reasons that are appear to be similar to ones you have written about). And it appears–though we have no context for that either–that he opposed the third memo.

He’s not a hero, I’ll grant you that. But the day that you ignore a lot of evidence of him opposing torture in general–and trying to run the bureaucracy–to take an isolated quote to hammer him is the time when you’re playing the same games with this stuff as the NYT.

How is it that it became the job of government lawyers to determine methods for interrogation that remained shy of the designation of torture?

Determining and evaluating physical and psychological stress and trauma isn’t anything that lawyers are trained in. How did this bunch of lawyers look at each other with straight faces when Cheney said, “And I want it yesterday”, and not respond, “Sorry, that’s not within my pay grade, you’re going to have to ask Congress to convene hearings or task it to a special task force at the Pentagon”?

I often think some version of your question when I’m struggling through these memos. There are times when I feel I’m reading Swift or Pope or Fielding channeling the mind of a mad bureaucrat or a mad scientist, logic-slivering away, completely detached from anything resembling common humane understanding (and possibly delighting in the detachment).

I’m not sure about yet further task forces, though, presumably composed of other kinds of professionals. To me, one of the main points of the Nuremberg processes was to affirm that you do not have to be a lawyer to know that an order or an act is beyond the pale of human decency, and you will not be absolved from committing inhumane acts just because you weren’t a lawyer and/or you were following orders.

Everyone is supposed to know that, everyone — presidents and prime ministers, officers, soldiers in the ranks, every citizen … and even the lawyers. In a democracy, everyone over the age of 18.

Truly I think that anyone who needs an OLC opinion to be sure of what constitutes torture is already in some serious moral trouble. Unfortunately, that would seem to be an awful lot of people.

This latest dog and pony show of Revisionist History On Parade (facilitated by a compliant mainstream media who willfully books the likes of Newt Gingrich, Liz Cheney, Dick Cheney and their other co-conspirators) has led to comments like:

“we wanted to know everything that we could possibly get away with under the law – and then do it”

While the foregoing is paraphrased, it clearly reflects their mindset (intent).

Means:
Torture was selected by Dick Cheney and Donald Rumsfeld as the means by which to extract the false confessions (on video tape) required to serve as the pretext for the invasion of Iraq.

Motive:
The motive has been clearly established, to acquire the land and resources of oil-rich nations, kill as many Arabs as possible in the process, and in so doing, facilitate the creation of “Eretz Israel.“
Opportunity:
Marcy’s great work details that it was Cheney who demanded that mechanisms be invented to facilitate the legal usurpation of the Geneva Conventions, thereby creating the opportunity to extract the coached confessions essential to “justify” the invasion of Iraq, Iran, Pakistan and Syria.

Cheney’s employer. Who was Cheney’s employer? What client/state was he serving? To what ends?

“it simply could not be that the Principles would be willfully blind.”

The entire administration’s eight years are summed up in that comment, and sadly, yes, it could be – all of the principals, AND all of their “principles.”

This administration attempted to take plausible deniability to a new high art form, and in so doing, all of the participants knowingly and willfully engaged in a conspiracy, with total guilty-knowledge that they were purposefully doing so – plain and simple.

Back when the rule of law prevailed, this was known as treason.

When an employer (Cheney) holds a gun to someone’s head (threatens to fire them, or demote them, or not promote them), unless they craft a legal opinion which makes legal that which is known to otherwise be illegal, the law provides that the resulting opinion is in effect the work product of Cheney himself. Cheney had guilty knowledge that the opinions he was requesting would MAKE NEW LAW.

Does employment law, and the doctrine of Respondeat Superior (let the master answer) extend to government appointees? Whereas Cheney was apparently the ruthless boss of everyone, is he not responsible for the work product he forced his underlings to create, under duress?

When a boss says “I need you to do this (illegal) act for me, or else,” the act becomes his own under the law.

At issue in the Nuremberg war crimes tribunal following the Allied occupation of Nazi Germany after World War II was a question concerning principles closely related to respondeat superior, which came to be known by the term command responsibility. The Nuremberg trials established that persons cannot use the defense that they were only following the orders of their superiors, if that order violates international norms but especially that superiors that ordered, or “should have known,” of such violations yet failed to intervene are also criminally liable.

MadDog (38) — “getting killed on the Hill” may suggest that the folks responsible for playing ball in the Appropriations committees were concerned and pushing back, perhaps even using this as perceived leverage if they were being expected to approve monies for black sites and Gitmo and more…

Jeff Kaye (61) — WRT to Philbin and the MCA memo, if that confidential 35-page memo looks something like this 9-page memo dd. 28-DEC-01 Philbin and Yoo wrote for Haynes, then the memo may not actually support the unilateral creation of a military commission by the EO without Congressional approval. This 9-page memo weighs the application of habeas corpus at Gitmo, and covers both sides of the issue, coming to this conclusion:

For the foregoing reasons, we conclude that a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantanamo Bay Naval Base, Cuba. Because the issue has not been definitely resolved by the courts, however, we caution that there is some possibility that a district court would entertain such an application.

Keeping in mind IANAL, this does not appear to me to be an iron-clad support for the EO’s position; the conclusion appears strongly qualified if you read the rest of the memo. I suspect the 35-page memo would be very similar in nature, but because it’s confidential it can be claimed as supportive if there is even the hint of possibility as this 9-page memo demonstrates. To my mind, Philbin comes off as someone whose work product is easily manipulated; keep in mind the 9-page memo is a joint construction of Yoo and Philbin, one has to wonder which parts of this qualified conclusion are Yoo’s and which are Philbin’s. Did Philbin keep Yoo under restraint in this memo? Is this why Yoo co-wrote with R. J. Delahunty the avoidance of Geneva Convention memo only a handful of days later?

(And just how did this 9-page memo get leaked, anyhow, and why?)

seesdifferent (34), valletta (42) — Rice’s participation may have been important due to Hassan Ghul’s Saudi Arabian residency. I find the footnote citing Ghul’s role as travel facilitator in the 9/11 Commission report interesting, because it mentions the need for Ghul to maintain his residency, but does not mention his citizenship. Was Rice involved with the Ghul situation in order to keep Saudi Arabia from getting a blackeye for funding terror through Ghul? was Rice further involved due to negotiations to transship Ghul to an unspecified country of citizenship or residency, like al-Libi? We all know what happened to al-Libi…

8. While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office’s prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.

I’m sure we’ve heard Levin explain that note to an SJC member who wondered, logically, how it fit with Levin’s conclusion that waterboarding is torture (after having himself waterboarded). Me non-lawyer, so I can’t reproduce the two-step Levin did, but at least we know his position on waterboarding. We also think we know, again from “sources,” that as soon as Gonzales became AG, he squeezed Levin out (which suggests that Levin had done at least some pushback) and set up Bradbury’s audition.

So suddenly running into that breezy paragraph from Shane and Johnston about Levin dropping by Bradbury’s office to apologize for leaving him to sign the 2005 memos threw me. No hint that Levin had been fired — he just got a new job, implies the article — and responsibility for those memos is shifted from Bradbury to him.

I have no idea how much Levin really resisted, but that is one very fishy version of the whole story.

Well, and one really weird thing is that Levin authorization in August 2004 seems to have been for Ghul. So why then would they need the Bradbury memo to authorize it after the fact? One possibility–which is really just a scenario that is possible, not one I’m endorsing, is:

1) Goldsmith withdraws support for waterboarding
2) They waterboard Ghul
3) Levin writes an authorization that puts limits on waterboarding that they have exceeded (like using it with sleep deprivation)
4) The December Levin memo, with its footnote, still doesn’t make CIA happy
5) Levin/Bradbury write the May 10 memos

Of course all that would mean they were REALLY lying when they said only 3 were waterboarded in CIA custody. But it’s possible.

Of course all that would mean they were REALLY lying when they said only 3 were waterboarded in CIA custody. But it’s possible

Or possibly that they were focused on one of the three, maybe al-Nashiri, having combined techniques used on him that resulted in a very negative outcome. These particular combined techniques might have been what Comey references when he talks about prior oral authorizations having been given in the case to which he wants to limit the second memo, by revising it to address only those facts.

Talk about the pot calling the kettle black…how many times did the Bush Administration mention the term “activist judges” in the context of allowing a judge’s own personal agenda to inform their legal opinions, and in so doing, create new law? These arguments were framed as the worst kind of judicial abuse.

You can always count on the Rovians to accuse others of that which they are themselves doing…every single time.

Cheney’s actions with respect to coercing his underlings to, in effect, write new laws in order to facilitate his own criminal conspiracy (coup), makes “activist judges” look like saints by comparison.

The entire issue of policy formation or averting existing policy is a question few people have definitively answered. It appears that in the past 30-35 years this aspect of American politics has reared its ugly head way too many times. Republicans in Congress fight activist judges. The WH and its unitary theories attack Congress with signing statements, secret ops, co-opting the OLC at DOJ, and packing the courts full of judges that support expansion of Presidential powers. Democrats in Congress try to push back the WH with hearings and investigations and harshly worded letters.

In all of this, we can easily see who has gained and who has lost. The key for progressives who truly value the Constitution and the balance it once bought to society is to find an avenue for support for true progressives in Congress and in the administration. Our media was an ally at one time. Now the media like in this NYT’s article is just a tool for the far right or those that have learned to circumvent the Constitution with Executive Orders or Memorandums that use vague legal contortions to allow the American empire to expand.

I thought it useful that Obama referred in his Cairo speech to the American Empire. The problem is that even “good” politicians like Obama never think of their own deeds as building the Empire. Afghanistan and his current expansion of troops is just another example of how our military advisors to the President influence the direction of American foreign policy.

When he was Deputy Secretary of Defense, Wolfowitz launched the White
House’s campaign against Syria. He was the first one to accuse the
Syrians of giving haven to leaders of the former Iraqi regime and
possessing weapons of mass destruction. Wolfowitz accused Syrian
President Bashar al-Assad in particular of practicing “extreme
violence” and said, “there should be change in Syria.”

Perle, meanwhile, supported Israel air strikes against Syria in 2003
and said that “I am happy to see the message was delivered to Syria
by the Israeli Air Force, and I hope it is the first of many such
messages.” He expressed his “hope” that the US would strike Syria.

Wurmser is not the most important of the three, but he’s an Israeli
Likudnik to the bone, like his Israeli wife Meyrav. Wurmser’s
disastrous presence in the Bush administration was founded on his
calls for an attack on Syria, his incitement against Syria, and his
promoting the venality of the neoconservatives when it came to
weapons of mass destruction.

You would think that someone like this extremist, with his loyalty to
a foreign power, wouldn’t be able to enter any US administration.
However, he was recently appointed an advisor to Vice President Dick
Cheney within the National Security Council, with responsibility for
the Middle East.

What’s Wurmser’s policy? There’s no secret in it. His name has been
linked to Richard Perle’s since the mid-1990s, involved in incitement
against Iraq, then Syria. They’ve been trying to out-do Benjamin
Netanyahu when it comes to extremism. When the latter was Israeli
prime minister from 1996-1999, he worked within the Oslo Accords,
which the neoconservatives said should be rejected; they also called
for preventing the establishment of an independent Palestinian state.
I’ve mentioned on several occasions in this column a study of the
cabal that appeared in 1996, entitled “Clean Break: A New Strategy
for Securing the Realm.” It contains a call for removing the Saddam
Hussein regime, followed by attacking Syria and finding an
alternative to Yasser Arafat.

“The CDI’s Ledeen, Amitay and Sobhani were featured speakers at a May 2003 forum on “the future of Iran’ sponsored by AEI, the Hudson Institute and the Foundation for Defense of Democracies. The forum, chaired by the Hudson Institute’s Meyrav Wurmser, the Israeli-born wife of David Wurmser (he serves as Cheney’s leading expert on Iran and Syria), included a presentation by Un Lubrani of Israel’s Ministry of Defense.

Summarizing the sentiment of neoconservative ideologues and strategists, Meyrav Wurmser said: “Our fight against Iraq was only a battle in a long war. It would be ill-conceived to think we can deal with Iraq alone. We must move on, and faster.”

JINSA, a neoconservative organization established in 1976 that fosters closer strategic and military ties between the United States and Israel, also has its sights on Iran. At a JINSA policy forum in April 2003 titled “Time to Focus on Iran-The Mother of Modern Terrorism,” Ledeen declared, “The time for diplomacy is at an end; it is time for a free Iran, free Syria and free Lebanon.”

JINSA, along with CSP, serves as one of the main institutional links to the military-industrial complex for neoconservatives. Ledeen served as JINSA’s first executive director and was JINSA’s “Godfather,” according to Amitay. Amitay is a JINSA vice chair. JINSA board members or advisers also include former CIA director James Woolsey, former Rep. Jack Kemp and the AEI’s Joshua Muravchik. After he joined the administration, Feith resigned from JINSA.’s board of advisers, as did Vice President Dick Cheney and Undersecretary of State for Arms Control John Bolton.”

From Glenn’s article: “But that’s how our media works: anonymous government officials tell them what to say; they write it down uncritically; and it then becomes conventional wisdom regardless of how false it is.”

Just when I think we have finally reached the bottom of this putrid barrel, the following day or so reveals yet one more layer of it. That the press would so actively participate in this flim-flammery is shameful.

Maybe it’s just me, but apart from further proof of the truism that there no longer seems any reason to read the Times and the Post on Bush/Cheney national security stories without emptywheel’s guidebook to the crazoidness close at hand, this entire storyline resembles nothing so much as the consciously incomprehensible crime-buddies flick The Usual Suspects, with Comey’s emails serving as one iteration of the Kevin Spacey character’s various tales related to the investigators, and Hassan Ghul serving as Keyser Soze.

Going through the “usual sources” on Ghul, one finds the author at Global Security Watch somehow — there’s nothing to back it up — ‘convinced’ [on the basis of “reliable” information] he was, at core, a made guy for al Qaeda; but then one also finds one or more sources were relating to Juan Cole that whoever he is/was, he isn’t/wasn’t/cuz he couldn’t be the one-and-only Hassan connected to the Egyptian office, so who the hell is he, and if we can’t trust the accuracy of his name, what can we trust?; and then one goes through the entire entry at wikipedia and finds any number of anomalies, contradictions and inconsistencies among the various variable varying claims for who he was/is [which anomalies, contradictions and inconsistencies are, in fairness, pretty much precisely the conscious theme of the entry]. In the end, just like with The Usuals, you don’t only have a variety of vexing questions around “Who is Hassan Ghul?”, you can’t even get past “Was there ever a Hassan Ghul?”

And this oddly scripted narrative in the Comey e-mails is SO “Verbal” [the name of the Spacey character — which turns out to be the meaning in English of the Turkish word Soze, but anyway …]: with all due regard for the dust-up above between Mary and fearless leader, in the course of two ‘reports’ over two days from a boss to his COS, we get the whiff of classic bureaucratic infighting AND classic CYA, with enough mystery and suspense folded into the selection to justify a series of follow-up Q&As of the author — all under the canopy of an ongoing-Grand Jury investigation and the Cheney Family Torture Rehab Tour.

OT: interesting article in LA Times on D.C. construction crews hitting “black wire” and black SUVs showing up within moments. Fav part is at end when they talk about AT&T crews showing up to repair the damage:

Georgelas, the developer whose company was overseeing the work when the Chevy Suburbans drove up, said he figured the government was involved when an AT&T crew arrived the same day to fix the line, rather than waiting days. His opinion didn’t change when AT&T tried to bill his company for the work — and immediately backed down when his company balked.

The TIA was never dropped. They just changed the name and carried on. The idea was deemed to be to useful to drop, did not matter what congress said, the bureaucracy of any form of govt can always find a way arond the political leaderships rules that they find to be against the interest and survival of the bureaucracy itself.

Manadel al-Jamadi, murdered in Abu Ghraib during “interrogation” by Mark Swanner, CIA employee. Several other prisoners died during or shortly after “interrogation” by “OGA” personnel in U.S. military prisons in Iraq. The ACLU has a list from the DoD review of 100+ deaths in detention, some thirty-plus of which even they considered worthy of investigation as homicides. I don’t have the link handy, but someone here might, or you could google.

Of the dozens of prisoners understood to have been held at CIA secret prisons whose whereabouts are not known now (the disappeared), some probably were killed. ProPublica has a list of some of those; there’s a link in a recent post at my blog.

Neil, that was not a rhetorical question on my part; it was prompted by an effort to imagine something that might turn up in the as-yet-to-be-released OLC report.

I’m wondering whether a CIA “interrogation,” rather late in the game, might have taken a lethal turn, something as yet undisclosed that would cause these folks to run for cover, leaking all over the place, trying to pin the blame on this or that other person (Comey being one of these)?

When I try to imagine what surprises a report might hold, hitherto unreported murders are what I think of.

I think that you are ignoring a lot of the context I have given – context of actions from Higazy, through landing at Lockheed with stopping points at the Arar affidavit and the Padilla press conf and pawning off Haynes even knowing about the the lie of the “rogue soldiers” that he spun etc.

But take a look at the emails themselves. They are file papering emails. His concurrence on the May 10 email has the dog that doesn’t bark context in that he doesn’t yarn one about it. When a lawyer says they concur on a legal opinion, I’m not sure what further context you feel you need to detemine that he … concurred with the first opinion. ?? We are pretty darned good at the “with the exception of” references in writings that you can tell he produced for them to set context later.

And you have no idea of the context on it. You have twelve words among hundreds of others opposing a different memo. I agree that it’s most likely that he’s trying to play an Obama game of isolating the past but trying to prevent this in the future, but to make that argument or any other, you need more context than you’ve got.

You know, I think it’s fine for you to make the argument that:

And it appears–though we have no context for that either–that he opposed the third memo.

because it is based on some objective facts and you point out the limits.

I also think that given the fact that Comey specifically references Bradbury’s other memo as good to go out and that he concurs, I’m on pretty darn solid ground to say he concurs in that memo. My spec on why he concurred on it, vs. not the second memo, the “Obama-esque” approach, is IMO the most charitable argument that you can make from the concurrence. The argument for concurrence is either that he may not actually agree with the memo but is ok with it bc it is limited to the specific circumstances laid out in it and he thinks it won’t be able to have broad application other than to sever out protection for a few CIA agents and contractors — OR —- he actually is ok with the legal conclusions of the memos in a more general aspect.

I gave him the benefit of the most narrow context possible from a concurrence in the opinion. Concurrence by a lawyer in a legal opinion HAS context. The memo generating the concurrence is the context.

The context is also the IG report if you want to go there. With the IG report in hand, the Abu Ghraib pictures, the continued by now multi-year interrogation detention of Padill who he handed off, etc. Comey concurred in a memo authorizing head slamming, forced nudity, hypothermia, etc. as “legal” and he’s done it knowing that, with all the pressure after Abu Ghraib for investigations (McCain also putting on pressure on Ghost detainees and while I agree Dems were doing things too, they couldn’t generate the same pressure on the administration at that point in time as McCain could or the press that he could)

I don’t think that his concurrence is the most important info from the emails either (in large part bc I’ve already said before that if he had papered memos the way Mora did and apparently even Zelikow did, we’d know about it before now and if he didn’t, then to some greater or lesser extent he was going along to get along. Both Mora and Zelikow had far less power, but lawyers who really vehemently disagree with advice being given to a client paper it and on something like torture, you’d do it in a memo. The reality of the situation with Comey, as with Mora and Zelikow, is that his “concurrence” or his “objections” made no difference, one way or the other, to the OLC memos. He, like Mora and Zelikow, was not OLC and the only true “superior” for OLC was AGAG.

So to be clear, it made no difference what Comey said or didn’t say – this walks directly to AGAG.

Comey also tells AGAG that if they let him rework the second memo to make it more like the first – authorizing combinations but in particular fact context (one he knows about some, enough to know that oral authorizations were given for the case that is causing the concern) Again, I give the most charitable argument I can think of for him on that – wanting to protect the torturers who already tortured for Bush but not leave the door wide open for the future. And on the context front, I point to the fact that this is pretty much what he did in Higazy (protect the existing FBI “interrogation”), and in Arar (protect Thompson, Ashcroft et al for their involvement in the shipment to torture) and in Padilla (protect the hand off to Executive abuse on American soil and try to coerce the court to protect that as well), etc.

Those are items of context that get lost and ignored when people light up over the appointment of Fitzgerald and the hospital showdown (which are also items of context). But there is a reason why I mention these other areas of context over and over (and also the context that the way Fitzgerald was appointed, rather than using an outside counsel, meant no report and gave broad ability to the acting AG [who might well have become McNulty – no one ever has bothered to nail that down] to change the mandate at any point and in complete secrecy) and that the hospital showdown might have been as much about getting the lawyers at DOJ off the hook with FISCt judges and that ‘teh program’ Comey ‘reworked’ is the one that Diggs-Taylor found to be unconstituional, is bc without THAT context (which I don’t recall many giving in the past) then people begin to have this assumption that if Comey is involved, then it is “straight arrow” and the results would meet the “boy scout” standard.

And my experience tells me that is just crap.

The result is that I wasn’t surprised at Comey’s support for Haynes, despite all the context relating to that (including Haynes parsing to the SJC) I wasn’t surprised at Comey’s support for the FAA. And I’m not surprised that he concurred (without need even) with the first OLC memo. And I think that it is harmful to set Comey up as someone who will do the “straight arrow” thing in a way that give de facto credibiilty to things he goes along with that should not exist.

Now, so much time has been spent for so long building the myth of Comey, the Good Guy, with Dems on the SJC fawning over him too, that it will now be that much harder to treat the first Bradbury memo in the way it SHOULD BE treated – as an abomination that no lawyer of decency should have gone along with. But everyone has spent so much effot on the establishing the heroic, decent guy persona of Comey that the FACTS of what he does keep biting the rule of law in the butt.

I agree he’s not the worst guy out there. I try to give him the charitable take on his concurrence in the Bradbury memo (find a more charitable one and I’ll consider it too) But it is just sipping on poisen to keep arguing that he’s the straight arrow good guy conservative. The facts just don’t line up with that. He did have the hospital showdown and should get credit for that – but that was mostly about protecting people in the Dept. That’s pretty much a pattern, again, from facts that provide that context. The involvement in the US atty scandal shows both the good and the bad of that. Ranging from protecting a Charlton to also protecting a Biskupic on a case that should have made someone’s eyes pop.

You know he opposed the release of the second memo (for more reasons than you let on–in fact for reasons that are appear to be similar to ones you have written about).

I’m not sure you mean about the “for more reasons than I let on” ? I was focused on the memos, which don’t provide a lot, but do provide one reference to specifics from his conversation with AGAG’s COS, and I spelled out that reference, in part to the memos setting a authorization pathway for “prototypical” interrogations of any detainee, seemed to me to be an indication that he shared that same concern I had on that. So I think I pointed out what you seem to be saying I didn’t – that he and I may have had a shared concern on that. He also went on to say that was just a “small slice” of his concerns, but I don’t see where he actually goes into what they are, so I’m not sure what secret knowledge of “for more reasons than I let on” that you think I have and kept back. ??

If I was speculating about the “small slice” I would say that he some of what he was worried about but didn’t want to put in even his emails to Rosenberg and wanted to discuss face to face with AGAG would have included that providing such a broad based memo would be implicated as a defense in cases already tried for torture and related abuse and would have conspiracy implications under the Torture conventions and might waltz DOJ directly into liability back upchain on war crimes under the War Crimes Act, etc. I could see a whole hell of a lot of concerns he could have had, but I was looking at what the email said.

He’s not a hero, I’ll grant you that. But the day that you ignore a lot of evidence of him opposing torture in general–and trying to run the bureaucracy–to take an isolated quote to hammer him is the time when you’re playing the same games with this stuff as the NYT.

I know you are saying (now more frequently than before) that he isn’t a hero, but too often it is said the same way pro-life groups say they are against the murder of Tiller.

Where is the evidence of him “opposing torture in general” in either these emails or elsewhere that I am ignoring? In his Arar affidavit? In his Padilla press conf? In his memo arguing that DOJ pursue charges against CIA torturers (havent’ seen that one)? In his memo to the file objecting to the Bradbury memos – something even a Zelikow generated? What I seem from the facts is a concurrence in the May 10 specific memo and a desire to make the other May 10 memo more specific to particular fact patterns. I think we are in fundamentally different places if you see that as “opposing torture in general” bc I don’t. I see it as cagey lawyering – let’s give all our pals a free pass but not do it in a way that future actions will walk complicity for them back to us.

With Levin, Goldsmith and Comey I have seen the unwillingness to be a Taft or a Mora. They are ok, over and over, with the footnote here and the withdrawal without replacement etc – the failure to just say “this is wrong” and instead to say, “hey, let’s insulate everyone already involve but let’s not do this in the future bc we might get in trouble for it”

And I don’t use 12 words from an email to support that – I use a lot of other context that you never mention. That’s why I mention it and of course you can’t mention everything in every post anymore than I can in every comment. So while you try to point out what NYT didn’t – and I think that’s a good thing and support it – now and then there are things you don’t as well. And now and then I flat out get things wrong – I’ll ante that up in the que too.

It’s absolutely true that the NYT misses a lot from the emails and totally ignores that Comey objected to the second memo. I don’t think it is true that he objected to torture as you are saying, based on the emails. The first memo that he did concur in is legal authorization to torutre. The second email is not one that he wanted have nixed (iow, there’s nothing to indicate that he ahd some strange “it’s ok to waterboard, but not waterboard someone with forced nudity as well” branched objection to torture – an, “its ok to torture with single techniques but not with combined techniques” concept, but rather that he wanted to make sure they were insulating the guy(s) who participated in a specific interrogation(s) that used combined techniques and who had oral authorization.

You think that is probably the Ghul interrogation. I don’t agree or disagree. I could see it being that – or being someone like Nashiri (someone who was severely hypothermic or had been through head banging or excessively lengthy sleep deprivation that were combined with waterboarding might have been more likely to have had a “giving up” reaction to the waterboarding for example)

I agree those are the kinds of things that should be discussed and I agree that the NYT didn’t spell out Comey’s objections to the second May 10 memo and possibly the last memo and that is misleading. I do think it is ALSO misleading to say that he was objecting to torture in general when he not only (not the 12 words) concurred in the first memo, but also held the Padilla presser and was charged with the Higazy investiup, and sat silent through Clement’s misreps to the Sup Ct and sat silent through Rumsfeld/Haynes characterization of Abu Ghraib and scapegoating of soldiers and still tried to get Haynes on the Cir bench and never pushed for preservation orders or issued them directly and never acted to insure compliance with court orders on torture evidence (including in a case like Padilla where he was direcgtly involved) etc.

There’s a lot more than 12 words there and I think the “other side” (of the hospital showdown and appointing Fitzgerald etc.) is already well represented. I point out the rest over and over bc that’s how advocacy works. When just one aspect gets all the attention, you don’t get to the right endpoint.

Let’s start, for example, with your reference to the IG report. What evidence do you have that Comey has read it? If he doesn’t know about the number of videos or who they showed (and his comment suggests he doesn’t), then it’s not clear he has read it. It’s not clear that he had any idea of what was there to preserve. He wasn’t involved in the non-response to the 9/11 Commission on the interrogations. That’s all stuff you’re assuming even though these emails show him still compartmented out of most of this discussion and with a faulty understanding of the tapes. Or do you have evidence that for Jim Comey and only Jim Comey the careful compartmentalization that Addington effected somehow completely eroded?

I don’t defend his support for Haynes. I don’t defend a lot of things he has done. But in your long comment, you make a lot of assumptions about evidence he had that you have no evidence for. Even in this case, it is clear he does not know what was done to (probably) Ghul, that he would have to do some factual investigation to get there. (Indeed, it appears that is what Addington and Cheney may have been trying to prevent–him and Philbin getting this information.)

Further, I really wonder what you think would get these people to work effectively. You say this is all CYA stuff–but it is using exactly the method that Mora did to get Rummy to back off the torture techniques: the threat of publicity. I don’t see why you think it would have been effective to go argue with Cheney or Gonzales on the merits. Threatening reputational harm and exposure was what had worked with Mora, was what had sort of worked with the hospital confrontation, and so he was trying to do it again. Yet for you, the same tactics used by Mora, used by Jim Comey, somehow amount to support for torture.

What you call Comey’s CYA tactics may be the one thing that allows us to hold Bradbury accountable for his role, and with it, Cheney and Addington. I happen to think that’s worth something. That’s WHY people do this stuff, of course.

I agree with you absolutely on one point. Comey did not then push to hold those who DID the torture accountable–the contractors and interrogators. That’s a problem. Not as big of a problem that has him helping Bush to avoid accountability on wiretapping, but still a problem. And I agree that was what his concurrence for the Techniques memo was about and may have been what his attempts to fix the Combination memo was about–to help those who had received okay already avoid prosecution for what had been okayed (and in this he is like Mukasey–no big surprise there). But my whole point on context has to do with whether or not he was trying to find a way to prevent this going forward. I happen to think there’s a good deal of evidence he was trying to do so, both on legal and policy grounds (and that would be more true if he was objecting to the May 30 memo).

Let’s start, for example, with your reference to the IG report. What evidence do you have that Comey has read it?

None – the evidence is that he saw drafts and finals of the May 10 memo and all its references to things in the IG report. I also don’t buy that he and Goldsmith, who was reportedly shocked, never discussed any of it, but still – the references in the May 10 memo to the IG report info are things I think he did know about.

If he doesn’t know about the number of videos or who they showed (and his comment suggests he doesn’t), then it’s not clear he has read it.

Ok – I don’t think I said he did. I mentioned the video reference in his email in large part bc I think the NYT ignored the impact of Comey telling Gonzales that he’d heard about a video and it would be a problem for them and later the video disappears but also vis a vis Comey not to clam that he knew about all the videos, but that based on his having heard about the existence of the video he described to Gonzlaes, he was required by professional ethics to figure out what was being done with that on the evidentiary front with so many courts (including the Padilla case that he had been directly involved with and where abuse of sources was specifically framed to the court) with respect to preserving that info.

It’s not clear that he had any idea of what was there to preserve.

Doesn’t matter – you usually don’t know everything you client has to preserve. That’s why we have these long lovely references to “all documents, digitized information, copies, originals, voice recordings, yada yada yada” language that we include in preservation notices

He wasn’t involved in the non-response to the 9/11 Commission on the interrogations.

Huh? Where did I mention the 9/11 Commission?

Or do you have evidence that for Jim Comey and only Jim Comey the careful compartmentalization that Addington effected somehow completely eroded?

I don’t even know what you mean by that? What I had ‘evidence of’ is what is being discussed here – the actual emails where Comey himself says he had heard about (not seen) a video of early interrogation. Once he had that information, he had duties that relate to it. I don’t claim that he knew all about every aspect of the torture program. I’m saying he knew that people were talking about a video bc he mentions it himself. I’m saying he knew about the May 10 memos bc he says so. And knowing about all the techniques listed in those memos (combined or not) he knows the lack of veracity by Clement to the Sup Ct and did nothing.

I don’t see why you keep going off on so many things that I’m NOT saying to try to make me out to be a big meanie about Comey. I never said he was read in the torture program or was invovled in something with the 9/11 commission that seems to be on your mind. I’d agree to disagree on opinions, but it’s false to clami that whether or not he knew somehting about a video is my opinion when he says it in his email. It’s also false to claim that this somehow is me saying that Addington’s compartmentalization failed but only with Comey. I didn’t say anything like that – but I did say Comey had professional responsiblities when he knew that there might be some kind of video evidence. He did and you instead of responding to that, you go off on Addington and the 9′11 commission and I have to say I don’t understand why. ?

But in your long comment, you make a lot of assumptions about evidence he had that you have no evidence for.

What?

I will say that I think you are glossing over what he did have access to, or said that he did in other settings apart from the emails though.

When he filed the Arar affidavit, he did it as Acing AG and under penalty of perjury said he’d made sufficient inquiry into the factual basis of his assertions. When he conducted the Padilla presser his prologue is about how the review he is providing invovled and making factual assertions about involved review of all kinds of classified info and cooperation between all kinds of departments and I think the way he handled the Geneva Conventions questions is pretty indicative of him having the Theissen report.

Even in this case, it is clear he does not know what was done to (probably) Ghul, that he would have to do some factual investigation to get there.

Right – and I say that he is wanting to get the facts to make that a fact specific case. What you aren’t acknowledging, though, is that he is saying that he knows enough about the case to know that there were oral authorizations given for what was done and he makes that as the argument for why they can issue an after the fact clean up memo. As a matter of fact, I never say that he knows what was done, but I do say that he wants to a) limit the memo to a fact specific reliance memo and b) that he says he knows that the particular case invovled oral authorization (IMO, those should be the bigger inquiry point). So why you keep responding to the specific things I say with “OMG, you are wrong wrong wrong bc there is no evidence he was read into the torture program” just confuses me.

Further, I really wonder what you think would get these people to work effectively. You say this is all CYA stuff–but it is using exactly the method that Mora did to get Rummy to back off the torture techniques: the threat of publicity. I don’t see why you think it would have been effective to go argue with Cheney or Gonzales on the merits. Threatening reputational harm and exposure was what had worked with Mora

Actually, nothing worked with Mora, they went around him.

But when you say you wonder what I think – you don’t have to wonder, I’ve said it. Comey should have sent preservation notices. Comey should have said that he was going to correct the Sup Ct record made by Clement. Comey should have actually issued – signed out – a memo objecting. Do I think that would have been “effective?” I don’t know and I don’t think I said it would have. What I’ve said is that those things that an ethical lawyer would do. As a matter of fact, I’m the one who keeps saying that neither Comey nor Zelikow’s opinions, whether expressed in a memo or a private email or conversation, had effect as a matter of law. Neither are at OLC or in the chain of command for OLC. But they do matter from a reasonable reliance standpoint, even for a fact specific memo, and more importantly some of them, like preservation notices and correcting the record, are duties of candor to the tribunal that exist whether they are “effective” or not.

Yet for you, the same tactics used by Mora, used by Jim Comey, somehow amount to support for torture.

No – Comey did not sign out a memo objecting to torture and Mora didn’t concur in torture memos. That can’t be as hard for you to see as you are making out.

What you call Comey’s CYA tactics may be the one thing that allows us to hold Bradbury accountable for his role, and with it, Cheney and Addington.

Well, when part of that email record is going along with the first May memo, I think it really makes it very blurry as to how you hold Bradbury accountable. In any event, I guess there are two distinct sets of CYA tactics and I have have two different reactions to them. The first “CYA” is Comey papering the file with self serving ‘as you know’ emails. I have no problem with that, do it all the time myself with people and my problem isn’t that he papered the file, but that I don’t think he papered it enough and should have done what Mora did with a memo. Which would also not leave much to the imagination and argument about what he does or doesn’t think is the legal analysis.

The other “CYA” is the tactic of using the OLC to provide cover for torturers. I do have a big problem with that and to the extent he concurred with it, even if only to the extent of one out of three memos, that bothers me a lot and I read the emails on the second memo to be saying that he wants to use DOJ to also insulate the people involved in the other other interrogation that proceeded from oral authorizations. You read it as saying that he wanted to do the fact investigation and he might at that point have concluded someone should be prosecuted. That’s a valid “agree to disagree” place bc I think he was on board with the basic plan of insulating the past torture from prosecution and you think that’s bull and I guess we are both operating on opinion there.

Well, ok, I thought we were at agree to disagree here, then you said:

I agree with you absolutely on one point. Comey did not then push to hold those who DID the torture accountable–the contractors and interrogators. That’s a problem. Not as big of a problem that has him helping Bush to avoid accountability on wiretapping, but still a problem. And I agree that was what his concurrence for the Techniques memo was about and may have been what his attempts to fix the Combination memo was about–to help those who had received okay already avoid prosecution for what had been okayed (and in this he is like Mukasey–no big surprise there). But my whole point on context has to do with whether or not he was trying to find a way to prevent this going forward.

I pretty much laid that out, and that IMO he was having a lot of heart to hearts that he didn’t want to put in writing about criminal consequences for the AG’s office for future acts that might be taken with those opinions out there, so I’m really confused now about the argument.

Your point was that you think he was trying to keep DOJ from authorizing future tortuer. I said pretty much the same thing when I explained the issue of revising the second memo. My point is that his concurrence in the first memo means he is ok with that memo and the only way you are ok with that memo is you are protorture OR (my more charitable take) pro-protecting CIA torturers when the DOJ was directly invovled in their torture program.

If you want to argue that he was trying to “fix” the memos so that future torture wouldn’t walk back to DOJ, I don’t see where we disagree or where I said anything that would be disagreeable to that point.

My points were about how often he has before, and seemingly is willing to here, walked away from enforcing criminal law against people in the Admin who violated that law and how he flouted professional ethics.

IMO, if he’d sent out a preservation notice and moved to correct the record – we might be in a very different posture on torture here. But that’s spec on the what would have happened. What isn’t spec is that he didn’t correct the record with what he did know about and he didn’t send out preservatino notices while he was on his way out the door.

IMO, if he’d sent out a preservation notice and moved to correct the record – we might be in a very different posture on torture here. But that’s spec on the what would have happened. What isn’t spec is that he didn’t correct the record with what he did know about and he didn’t send out preservatino notices while he was on his way out the door.

Fair enough. I’ve simply never seen where the opportunity was there–hell, even Olson, who supposedly quit when he found out he’d been misled on content, didn’t correct the record on HIS way out the door, did he?

The reason I raised the 9/11 stuff is that’s the closest he came to being involved in not turning over the videos, timewise and knowledge-wise. What I don’t see, in terms of when he had real knowledge in any of these cases and a real moment and person to send out a preservation notice to.

He came to DOJ after the criminal referrals during the CIA IG report (one was lingering, but it was DOD related). Some of the key discussions (9/11 COmmission, Taguba) took place at Gonzales’ level. We have Muller meeting with “senior DOJ officials” on the IG report in May 2004, which is a fair point to assume knowledge of the scope of the torture. The discussions about the tapes appear to have heated up sometime in summer, 2005 (though it’s not clear when). And Comey was not overseeing any of the big evidence requests before he left. So for him to have done as you say, he’d have had to review earlier cases to know what the requests were (Moussaoui is the case he should have been aware of, but again, the representations made by DOJ happened before and after he was DAG).

SO while I agree that a perfect person, if and when he had solid knowledge of the tapes, would have sent out a preservation notice, I simply don’t see the moment when that would logically happen save perhaps just as he was out the door, when Negroponte told Goss to keep the tapes (though Negropone was much more in the loop, I imagine, than Comey). All I’m saying is even with Padilla–in which he should have taken an active role–the case was not at a point where the evidence was actively in question.

Yowser when you read those Comey emails it could not be any more clear that Comey was not only against but forewarned them of just exactly what they are facing now….accountability
when the “shit hits the fan”

What you call Comey’s CYA tactics may be the one thing that allows us to hold Bradbury accountable for his role, and with it, Cheney and Addington. I happen to think that’s worth something. That’s WHY people do this stuff, of course.

Well stated EW. He’s not the golden boy, but it has been clear since we got our hands on the “combined” statement that, Comey would be key in nailing the core machinations of torture. Comey was probably pretty clear in knowing his emails would need “spook speak” bread crumbs for the investigators. I read them more through the eyes of laying down the dots to connect. More smoking gun than CYA.

I guess they never read Angler? It doesn’t deal in depth with this particular story, but IIRC it does cover a bit of it. it certainly covers Comey and the dynamic between him and the Cheney gang very well. They hated him for not being a rubber stamp.

There’s a piece of christian scripture that even a non-believer like me sees some secular utility in: “by their fruits you shall know them”. So far Comey’s ‘fruits’ won’t win any prizes at the state fair…. just sayin’

I’m wondering what significance there is to Comey’s mention (in second graf of third email) of a video of a session, he makes it sound as if it may be damning. wonder if it’s one of the ones destroyed.

I just wanted to say:
This is my first time reading emptywheel and ensuing discussions and I am left feeling this:

Maybe newpapers should die, for two reasons:

1) Trees, like humans, are living beings, and neither should be fed into a chipper-shredder.

2) That debatable sin (the ol’ “do trees feel pain” argument)is dwarfed by the horrific and fairly common practice of spitting on the sacrifice of the trees by filling papers with drivel, propaganda, slander, hogwash, and advertising (which is a combination of the preceeding four). This is made SO apparent by the NYT/EW contrast.

Hooray for emptywheel, firedoglake, grittv, the Nation (see, there’s a good use for a tree!), etc… I don’t understand what they mean when they say alternative media… I don’t see any other media around, just mouthpieces. Thanks for the great work, emptywheel and all posters. You make me feel, well you know, different… I mean, I more than like you, I like like you.. Hell, I LOVE guys!

“The AG began by saying that Dr. Rice was not interested in discussing details and that her attitude was that if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for detailed policy discussion. Pat and I urged the AG in the strongest possible terms to drive a full policy discussion of all techniques.” – James Comey to Chuck Rosenberg, May 31, 2005 memo

and that

Soon after, in the late spring of 2005, Gonzales attended a Principals Committee meeting on the topic of detention policy. Comey prepped Gonzales for the debate, arming him with all kinds of arguments against torture and cruelty as U.S. policy. But Gonzales returned from the meeting dejected and defeated. He told the subordinante that not a single cabinet member in attendance had any second thoughts about the CIA’s secret program. Cheney was adamant about it. Gonzales claimed that Rice, too, took a surprisingly hardline (although others disputed this assertion). Her position, according to the Attorney General, was that if the Justice Department said these harsh practices were legal, and the CIA said they worked, she was on board. The question of whether it was smart, and right, and in the interests of America’s long-term foreign-policy goals, Gonzales suggested was not deemed worth talking about by fellow memors of the Bush cabinet. Gonzales went along.” – Jane Mayer, The Dark Side, p. 311

Dunno, it caught my eye. If Comey’s memo was secret till just now, did Rice have that phrase printed on her business cards for common use? I wonder who the “others” were who disputed the assertion? Does this help in figuring out who leaked the memos to the NYT?